Widgets Magazine

Net Neutrality Rules Backed By Courts

Let’s face it, if you’ve followed my work for the last two and a half years then you knew this blog would be coming within 24 hours of the news being made public. Yes, on 6/14/2016, Flag Day, the D.C. Appellate Court finally ruled on the lawsuits that had been presented to them back in December of 2015. The ruling, which many are calling landmark and extraordinarily significant, is not entirely unexpected as this court has previously laid the groundwork for how the FCC needed to proceed when it ruled in the 2014 Verizon case. Yup, it was the same court – and even one of the same judges – that threw out the last Open Internet Rules that now backs them as they stand.
We need to be perfectly clear, though, when we say that they are backing these rules. What that actually means is that based on the lawsuits and evidence presented in this instance the court determined that the FCC’s rules could stand as written.
As a recap of the lawsuits, there were several subjects that were the focus of the groups filing suit against the FCC and the proposed rules. The first subject was on whether the FCC had the authority to reclassify broadband internet as a telecommunications system as opposed to an information system. The second subject focused on the challenge to the regulation of the ISP interconnection arrangements. The third was in relation to the FCC’s ability to reclassify mobile broadband as “commercial mobile service.” The fourth looked at how the FCC applied the Title II reclassification to the ISPs and whether certain parts were knowingly ignored. The fifth portion dealt with specific challenges to the rules, and finally part six assessed whether or not the FCC forcing ISPs to allow any and all edge service traffic to the users was a violation of the 1st Amendment rights of the ISPs.
The court rulings are not a short document to read (184 pages in all) so if you’d like to take the time, I highly suggest doing so by downloading them here.
Being as the court ruling isn’t a short read I will be updating this post as I get through each of the individual rulings over the next week. I appreciate you bearing with me as I trudge through a lot of legalese and information.
What I can tell you for now is this: everything that I’ve covered up to the point when the lawsuits took place last December is still true. With the Court backing the FCC in these cases they have effectively allowed the Open Internet Rules to stand as is. There are still issues for the audiovisual industry as there is unprotected content that travels over ISPs that we use just about every single day. Things like VPNs or edge devices that use the backbone of the internet but are not considered edge service providers because they are not accessible from substantially anywhere on the internet.
More importantly, unless the Court found more information or provided some greater insight, then we are still in a wait and see mode when it comes to interchange traffic between ISPs.
I look forward to trying to bring as much information to bear on these Court rulings as I can over the next week, so stick with me and we’ll see if there’s any new information that I can bring to light.
Additionally, please remember that these are just the first cases to be filed by challengers to the Open Internet Rules. There will likely be more as time goes on and there is still Congress to deal with as well as many of them receive money from the very powerful communications lobbyists. This action by the Courts is a big blow to the efforts to defeat these rules, but it is by no means a sure thing to stop them.
Update 6/15/2016 – Did the FCC Have the Authority?
When it came to this decision the Court was consider two specific instances. Number one, is broadband service considered a stand alone service? Number two, is broadband service a telecommunications service?
The FCC considered broadband internet access services to be both a stand alone service and a telecommunications service which is what they felt gave them the authority to reclassify broadband internet access services (BIAS) as a Title II service. What they mean by a stand alone service is that broadband can be defined as something that is providing connectivity from a user to another third party service that they choose to access. That users are only paying for the service to connect is what makes it a stand alone. All the other services that ISPs offer – email, news, and other services are considered add on services that are not requirements for using the ISP of choice.
The FCC clarified that BIAS is a telecommunications service because as a stand alone service the users rely on ISPs to “transmit information of the users’ choosing,” “between or among points specified by the user,” “without changing the form or content of that information.” Seems a little simplistic to think of broadband internet as just something that allows users to transmit data between two points without it being altered in any way, but that is how simple a telecommunications service can be defined.
Some of the lawsuits brought before the court stated that the FCC violated procedure in the process of the reclassification because in the request for public comment they didn’t explicitly state that they were considering a reclassification to Title II. Additionally, there was a suit in that the FCC did not provide a meaningful opportunity to comment on the Title II reclassification. Both of these issues brought before the court were struck down without merit as in the open public comment period the FCC asked if reclassifying to Title II was best, they were not required to provide a meaningful opportunity because classification is based on what the public deems the service to be.
From the substantive suits brought forth, though, US Telecom raised the issue that the FCC didn’t have the authority to reclassify the entire system as a telecommunications service, but merely the last mile based on the precedent brought forth in previous cases – specifically Brand X. The Court, was not splitting hairs between the last mile of the internet connection between a person’s computer and the ISP’s computer, but rather considering the entire information chain and therefore felt no need to resolve this dispute.
Without wanting to dive into a long series of legal cases and historical movement and policy in Congress, I will simplify the remainder of the arguments brought forth here as being referential to various cases and portions of regulations that were used to frame the arguments brought forth by US Telecom and its various supporters. In the end, the Court wrote that the basis of information brought forth under each of the instances was either contradicted by or neglected to consider the information in other cases as well as the intent of Congressional Acts. Therefore, the Court was able to rule that yes, the FCC did have the authority to reclassify broadband internet access services as Title II services.
Update 6/18/2016: The Court is Limited
Reading through a court decision isn’t always as dry and dull as it might sound. Occasionally you run across some very interesting distinctions. For example, while working the way through the remainder of the section regarding whether the FCC in its reclassification behaved appropriately, the Court specifically points out the fact that their role is “to ensure that [the agency]engaged in reasoned decisionmaking – that it weighed competing views, selected [an approach]with adequate support in the record, and intelligibly explained the reasons for making the choice,” as it recalls FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760, 784 (2016).
Perhaps even more interesting is that in recalling precedent from FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), the Court points out that the agency making the change “must show that there are good reasons for the new policy[,]…it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.”
While the telecom companies argued that the Verizon case laid out that internet regulations could be managed as an information service under 706 without reclassification, the FCC found it necessary to reclassify in order to ensure that their three bright-line rules (anti-blocking, anti-throttling, and anti-paid-prioritization) required the reclassification, and the Court agreed.
These regulations do create the argument that it will stifle innovation and expansion of the networks by the ISPs, but the Court deemed the FCC’s statement that “any harmful effects on broadband investment ‘are far outweighed by positive effects on innovation and investment in other areas of the ecosystem that [its]core broadband policies will promote,'” reasonable in an opinion with partial dissent.
That partial dissent, though, is a completely unexplored part of the argument as the US Telecom Petitioners provide no elaboration on how the reclassification will harm broadband investment. It’s certain that this will be one of the gaping parts of the case that the US Telecom groups will look to in order to try and defeat the Open Internet Rules in their next attempt.
Update #2 6/18/2016: Interconnec…we’ll get to that
As I’ve covered previously, the FCC famously neglected to include any direct statement of regulation regarding the interconnection of ISPs and the traffic that flows between them because they didn’t have enough information at the time of the rules being approved and would take issues on a case by case basis. They are stating that they qualify as part of the Title II regulation, though, effectively saying that they can be regulated in the future once they figure out how to do so.
Simply put, in regards to the US Telecom challenge to the FCC’s ability to reclassify in the interconnection and regulate it as such, the Court states that the defense of the argument mounted was based on US Telecom misreading the decision in the 2014 Verizon case.
Next up in the decision was the FCC attempting to reclassify mobile broadband. The Court addresses this by citing Title III of the Communications Act which segregates “mobile services” into two categories “commercial mobile services” and “private mobile services.”
The FCC obviously saw the way that mobile broadband technology was used in the modern age for mobile browsing and made the logical conclusion that it should be included in the Open Internet Rules.
The mobile network providers attempted two challenges to this change. The first was that their networks should not be considered “public switched networks” because those are just telephone networks. The second was that even if the definition of public switched network was expanded to include mobile (which it was by the FCC’s Rules to encompass users with IP addresses not just telephone numbers), mobile broadband still isn’t an interconnected services. Both arguments were rejected by the Court.
To editorialize for a moment, both arguments should have been rejected. This kind of attempt to draw semantic, or even false, lines in the sand to not have to abide by government regulations intended to protect users was a mere fishing expedition looking for a loophole in the system.
Update 6/21/2016: Moving right along
While I’m sure you readers would find the discussion of forbearance fascinating, attempting to translate this section might even drive the most loyal of you away from this discussion so we’re going to jump to the next section where the Court addressed specific challenges to particular rules adopted by the FCC. These are the challenges to the banning of blocking, throttling, or paid prioritization.
First up was the telecom group Alamo trying to challenge whether the anti-paid prioritization rule was within the FCC’s authority. They attempted to use the ruling in the Verizon case, specifically pointing to section 706 of the Communications Act to establish this point. The Court, however, was quick to point out that Alamo misread the ruling and, in fact, the ruling in the Verizon case set forth the precedent that the FCC was able to use section 706 to establish their rulemaking authority.
The dissenting member of the Court picked up where Alamo left off allowing for the discussion to continue to reach the conclusion that section 706 only provides the FCC the authority  to “governing broadband providers’ treatment of internet traffic.”
Next up was quite an interesting challenge that some might file as a leap of logic attempt. Effectively, the challenging party attempted to say that the General Conduct Rule in the Open Internet Rules shouldn’t apply due to the fact that it was too vague. In short, the General Conduct Rule forbids broadband providers from engaging in conduct that “unreasonably interfere[s]with or unreasonably disadvantage[s]end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users.”
They attempted to make this challenge by applying the Due Process Clause that invalidates laws or regulations that are impermissibly vague. The Court disagreed with their challenge remarking that there had been adequate notice to make comments, changes or inquiries for clarification. Additionally, they find that the General Conduct Rule isn’t being used as a stand alone rule, but rather in conjunction with the bright-line rules (anti-blocking, anti-throttling, anti-paid prioritization). Lastly, the Court also points out that the FCC did not just merely set forth the factors of the rule, but also defined how each factor will be interpreted and applied.
Last up for this update is my personal favorite case brought before the Court – the 1st Amendment challenge.
Alamo’s challenge is that the bright-line rules presented in the Open Internet Rules prevent them from managing their network the way that they wish to do so. Their representatives making this statement in court counts to the fact that were the rules not in place that Alamo would pursue the actions that are listed as those that cannot be taken. This is what makes it a 1st Amendment case and the Court allows for the challenge.
The argument that Alamo makes is that these rules force the broadband providers to transmit speech with which they night disagree. The Court disagrees by referencing that nowhere is Alamo challenging the Title II reclassification and that it, along with history, are reference to the fact that service providers have long been subject to nondiscrimination and equal access obligations.
The Court looked at the challenge and emphasized two specific points. The first was whether or not the broadband provider is advertising themselves as a neutral provider or a limited access provider. If the ISPs choose to advertise and represent themselves as only offering access to certain locations then there is an exception written into the Open Internet Rules that exempts them from having to abide by them. The second point was focused on how the reclassification to Title II creates a common carriage circumstance.
By making broadband internet access a common carrier the FCC created an environment that require nondiscriminatory passage of content. The ISPs are merely a conduit to the information and therefore, when compared to similar historical technologies like telephone and newspaper (distributors of free speech), the precedent is established that the conduit does not carry the ability to control the content accessible from its network. The size of the audience available via the Internet, as opposed to telephone or newspapers, is not a factor when considering free speech rights. There is recognition of limitations of access due to network constraints in the ruling, but overall any other limitation by an ISP is considered against the rules

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